The Environmental Impact Assessment (EIA) Regulations of 2014 (amended in 2017) as promulgated in terms of the National Environmental Management Act, 1998 (Act 107 of 1998) (NEMA) requires compliance auditing of Environmental Authorisations (EA), Record of Decision’s (RoD), Environmental Management Programmes (EMPr’s) and Closure Plans (CP), with the results to be submitted to the Competent Authority (CA) by no later than 7 December 2019. Holders who have not submitted audit reports as required in terms of Regulation 34 will be deemed legally non-compliant and can be held liable to penalties as described in Regulation 48(1)(d) of the EIA Regulations of 2014.
Regulation 34 requires the following to be audited:
Environmental Authorisations and Record of Decision’s must be audited for compliance against the conditions of the documents. Once the audit is completed in accordance with the requirements set out in Appendix 7 of the EIA Regulations and by an independent person, the audit report must be submitted to the Competent Authority. Within seven days of submitting the EA and ROD compliance audit report to the CA, the Holder of the EA and ROD must notify potential registered interested and affected parties (I&AP’s) of the submission of the report and make the report available to anyone on request and on the Holders’ website, should they have one.
EMPr’s must be audited for compliance and performance against the conditions of the documents. Therefore, in addition to the compliance audit of the EMPr, the EMPr must be assessed for its ability to prevent, manage and mitigate environmental impacts associated by the activities undertaken on site. In the event where the EMPr is deemed insufficient to prevent, manage and mitigate environmental impacts on site, the independent auditor must provide recommendations for amendments to the EMPr that will sufficiently provide for the avoidance, management and mitigation of environmental impacts associated with the activities as undertaken. Recommendation for amendment must be subjected to a public participation process as agreed to by the Competent Authority after which it must be submitted to the Competent Authority for approval. As with EA and ROD audits, potential and registered interested and affected parties must be notified within seven days of submission of the report to the competent authority. The audit report, including recommendations, a consultation process description, and comments received during the consultation process must be made available to anyone on request and on the Holders’ website, should they have one. In the event that no recommendations were made by the auditor and the EMPr was found to sufficiently provide for the avoidance, management and mitigation of environmental impacts associated with the undertaking of the activity, the process followed will be the same as during the EA and ROD audit process.
Where relevant, the Closure Plan, as authorised in terms of Activity 22 or 31 in Listing Notice 1 of NEMA, must undergo the same process described for EMPr’s. It should be noted that Regulation 34 of the EIA Regulations of 2014 does not apply to all Closure Plans, as described above.
At this stage, authorisations and licences granted in terms of specific environmental management acts (SEMA’s) is not explicitly included in Regulation 34 of the EIA Regulations. This excludes Water Use Licences (WUL’s), Waste Management Licences (WML’s) and Atmospheric Emission Licences (AEL’s).
The Regulation 34 process will require Holders to assess all EA’s, RoD’s, EMPr’s and Closure Plans as described above in order to generate a scope for completing a Regulation 34 audit for their activity as undertaken. Once the scope is finalised and the Holder is conversant to what needs to be audited, the relevant Competent Authority should be contacted to ascertain their requirements for the public participation process and period. Should no response be received, with the deadline drawing closer, it is advisable to follow the public participation process outlined in Regulations 41 to 44 of the EIA Regulations of 2014. With the audit report being published and independence of auditors being a requirement of Regulation 34, it is crucial to provide evidence of compliance or evidence of non-compliance where relevant. This will ensure accurate and objective audit findings being communicated to potential interested parties when approaching the public comment phase, resulting in relevant and refined comments being received. Below a simplified diagram of the Regulation 34 process.
If ever you may require a proposal for professionally registered scientists and auditors to conduct the Regulation 34 audits, please do not hesitate to contact Environmental Assurance (Pty) Ltd. (ENVASS) at firstname.lastname@example.org or call us on 012 460 9768.